THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday March 8, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with video conference this day at 4:15 p.m. [ET] to examine Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.
Senator Brent Cotter(Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs.
Before we begin, I would ask senators to introduce themselves, beginning on my left.
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
Senator Klyne: Marty Klyne, Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dupuis: I am Renée Dupuis, an independent senator from the senatorial division of The Laurentides, Quebec.
Senator Clement: I am Bernadette Clement from Ontario.
[English]
The Chair: I’m Brent Cotter, senator for Saskatchewan and chair of the committee.
Senators, this afternoon we continue our study of Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.
Today, we welcome, from Public Safety Canada, Chad Westmacott, Director General, Community Safety, Corrections and Criminal Justice, Crime Prevention Branch. Mr. Westmacott, you will have five minutes or so to make your presentation followed by questions from the senators who are here.
Chad Westmacott, Director General, Community Safety, Corrections and Criminal Justice, Crime Prevention Branch, Public Safety Canada: Thank you, chair. Honourable senators, I am pleased to be here today to discuss Bill S-212, an Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation. Thank you for inviting me.
I would like to start by acknowledging that I am on the traditional territory of the Algonquin Anishinaabe people.
I appreciate the tenacity and dedication demonstrated in this bill to helping those who are most affected by criminal records to obtain a record suspension in a timely fashion. The bill proposes an automated zero-fee record expiry system for all criminal records. This system would apply automatically to summary offences after two years and indictable offences after five years.
I believe that we have the common goal of increasing accessibility to pardons through record suspension program reforms. Both the government and the senator agree that providing relief through the elimination of the stigma of individuals who have a criminal record would increase their access to adequate housing, meaningful employment and educational opportunities, leading to reduced recidivism and improved reintegration into the community.
That is the reason that the government is working diligently to implement changes to the records suspension program. Last year, on January 1, 2022, the government reduced the fee for a record suspension application form from $657.77 to $50. The government acknowledges that applying for a record suspension is a complex process, especially for marginalized and racialized communities, who are most affected by criminal records.
To help individuals navigate the application process and ensure that they have the right information and resources, the government is providing $18 million over four years to organizations active in corrections, conditional release and community reintegration to provide these services.
That is not all. The government is actively exploring an automated sequestering of criminal records system, or ASCR, for less serious offences for those who have been living crime-free.
This past spring, the government conducted consultations with criminal justice stakeholders and with provinces and territories to understand the gaps and considerations that would need to be addressed for an ASCR system to be feasible. We also heard from those with living and lived experience who spoke to the impact of having a criminal record and what a record suspension offers.
It is clear that an automated system for records suspension is a longer-term endeavour that requires federal, provincial, territorial and municipal databases to be interoperable to contain digital records associated with fingerprints for all eligible offences and include information to demonstrate that sentence completion has been achieved among other operational complexities. An ASCR system requires that complete and timely criminal records are available and accessible.
The government intends to continue working toward the most efficient way to accomplish this goal while maintaining public safety safeguards in the system. We definitely want to do this right.
The proposal for a record expiry system through Bill S-212 does not account for the significant operational considerations that an automated system would entail and does not identify resource implications, which are substantial and necessary in order to create and implement a new system.
Our counterparts in the provinces and territories have been clear that while they support the intent behind the government’s initiatives, there remains considerable work to be done.
In addition, Bill S-212’s intent is to apply to most criminal records without consideration of the severity of the crime before allowing for its permanent and definitive expiry.
The removal of the criminal record eliminates the ability of law enforcement to access the record and to revoke or cease the record suspension if an individual reoffends, except for under specific and limited cases.
The ability to revoke or cease a record is an important safeguard outlined in the Criminal Records Act to ensure that communities remain safe.
That being said, the government agrees that record suspensions should be made more accessible for law-abiding individuals who have been living in the community crime free.
ASCR would be similar to Bill C-212 in its purpose and intent; however, there are fundamental differences I would like to highlight.
First, an ASCR system would likely only apply for less serious offences, specifically summary offence convictions and not indictable offences. This approach would align with what other like-minded countries have adapted as an approach toward automated record suspensions.
We have heard, through consultations and engagement, that key criminal justice stakeholders support an ASCR system, but that they want the system to have safeguards.
Stakeholders believe that more serious offences should continue to be reviewed by Parole Board members, and that those who reoffend should not maintain their record suspension.
Under Bill S-212, there are no ineligible offences, which means that other serious offences, such as aggravated assault or drug trafficking, could permanently expire if the individual is not involved with the criminal justice system at the time of eligibility, without additional review.
Additionally, Bill S-212 aims to permanently set aside most criminal records after the designated wait period, with very limited exceptions. These exceptions for sexual offences listed in Schedules 1 and 2 that would continue to allow for vulnerable sector checks as well as cessation and revocation if a board member is satisfied that the person knowingly made a false or deceptive statement, knowingly concealed some material related to the record expiry or was ineligible for the expiry when it was ordered.
Under an ASCR system, criminal records for less serious offences would likely be set aside and apart through automation, while more serious offences would still require an application and review by the Parole Board member.
The minister would also maintain his ability to disclose suspended criminal records, and the PBC would maintain their ability to cease and revoke a record suspension under certain criteria.
I believe that the work we have done to date takes into account the significant considerations associated with the operationalization of an automated system for sequestering criminal records while maintaining safeguards for communities.
We have already implemented several record suspension program initiatives and will continue to advance meaningful reforms to address systemic barriers, promote reintegration and ensure the system is fair and proportionate. Thank you for your time.
The Chair: Thank you, Mr. Westmacott.
[Translation]
Senator Boisvenu: Please remind me what your role is within the correctional service.
[English]
Mr. Westmacott: I am with Public Safety Canada, and I’m the Director General for Community Safety Corrections and Criminal Justice.
[Translation]
Senator Boisvenu: Are you in daily contact with federal penitentiaries?
[English]
Mr. Westmacott: I work more with the CSC, Correctional Services of Canada, not directly with the penitentiaries themselves.
[Translation]
Senator Boisvenu: What is your job, though?
[English]
Mr. Westmacott: We work on the policy related to corrections, community safety and criminal justice, and we also have a research division that works within my team.
[Translation]
Senator Boisvenu: You’re not in constant communication with the people who were involved; you’re on the administrative side.
[English]
Mr. Westmacott: We are more on the policy side. We have constant communication with Correctional Services Canada. We also, as I mentioned, undertake significant consultations in regard to what would be the best approach going forward for a variety of policy issues.
[Translation]
Senator Boisvenu: Do you have data on the number of people incarcerated in federal prisons annually, and the number of people incarcerated in provincial prisons annually?
[English]
Mr. Westmacott: That data is available to me. I do not have it accessible to me at the moment, but I have an understanding that there are about 12,000 people in the federal correctional system. I can confirm those numbers. It is a part of the annual survey that we release.
[Translation]
Senator Boisvenu: Every time someone is released from prison, whether it’s after serving a third or two-thirds of their sentence, is a notice automatically sent to the Parole Board of Canada that Mr. or Ms. So-and-so was released?
[English]
Mr. Westmacott: I have colleagues coming on later today from the Parole Board of Canada, or PBC, who would be better placed to discuss the communication between CSC and the Parole Board of Canada, specifically.
[Translation]
Senator Boisvenu: Statutory release is an automatic release. Often, people who are still at high risk of reoffending are released automatically. Will there be a specific mechanism within the correctional service to ensure that people at a high risk of reoffending who are released — because they are required to be released since they have served two-thirds of their sentence — are properly supervised upon their re-entry into the community?
[English]
Mr. Westmacott: Most of the individuals are released on parole, and there is a comprehensive system in place to ensure that the individuals get support for their reintegration and rehabilitation.
You are correct there are a number of individuals released on statutory release. I will defer to my Parole Board colleagues in terms of the specifics of the support for offenders released on statutory release.
Senator Clement: Welcome to the committee. When the Youth Criminal Justice Act came into force, the criminal legal system did not have a way of separating a person’s record from the active criminal records stored on file. In fact, under the Young Offenders Act, youth criminal records were treated virtually identical to adult records.
Twenty-one years later, the system for youth criminal records stored in the RCMP’s Canadian Police Information Centre, or CPIC, is a robust, extremely successful, automated system, where there is access to that youth criminal record for a certain time frame, and then after that, it is removed. In many ways, it is more complicated to navigate with different time frames for sealing records than the bill in front of us today. Can you tell us how that same separation of a criminal record as an operation of law could be applied to adults?
Mr. Westmacott: There are definitely lessons that could be learned from the youth act. There are a number of different elements in play that would have to be looked at to apply those lessons specifically to this system that we’re looking at here today, including a variety of other acts in play including the Identification of Criminals Act that play a role in terms of the operationalization of an ASCR, an Automated Sequestering of Criminal Records system, or what is being suggested under Bill S-212.
There are a number of these other different acts that are at play that would have to be taken into account as well — and taking a look at all of the different implications in regard to the Youth Criminal Justice Act.
Senator Clement: One of the difficulties that we face with criminal records and crime in general is separating the facts from the myths. For example, we often hear that recidivism rates are very high, but we do not take into account that, over a certain amount of time, after years pass, those rates reduce drastically and become quite low. The doubling of the eligibility period of the criminal pardon system was criticized heavily for being punitive rather than based upon facts.
Can you tell us about the research that has been done by your department on recidivism after five years? Do you have any information on the effects of having a criminal record, and the disadvantages and hardships that it creates on increasing those recidivism rates?
Mr. Westmacott: Absolutely. Thank you very much for that question.
It is true that the recidivism rates do decline over time. There are a number of studies that show that to be the case.
Our own work and the Federal Framework to Reduce Recidivism, that was released last June, point to the fact that there are a number of actions that can be done to help reduce that recidivism rate. We do recognize that the rate of recidivism reduces drastically over time to a point where you get to a threshold where if you have been living crime-free in the community, you have the same percentage chance of offending as an individual who has never offended in the past.
Bill C-31, which was introduced a little while back, was working to change those rates back to the three years for summary and five years for an indictable offence — the time frame for waiting for the application for parole, recognizing what you were saying.
Senator Clement: I would like to come back to your answer to the first question.
The youth criminal justice — that has been hugely successful. I am trying to understand how you answered that. You talked about the identification of criminal acts. Is there anything else? I just feel like we are not talking enough about how successful that is and how we could be using that exact success here.
Mr. Westmacott: There is a different starting point in the fact that, with the Criminal Records Act, or CRA, there are a number of elements, including the intent of the criminal’s actions, that would have to be examined in depth to determine what lessons could be applied from the Youth Criminal Justice Act to support the changes in the Criminal Records Act. We have looked at those. We have looked at different lessons, but it is not necessarily a one-for-one relationship.
Senator Clement: Because?
Mr. Westmacott: Because of the different elements within the criminal — I do not have it at my fingertips. We could work to provide something more in depth for you in terms of what the differences would be. I do not have that at my fingertips, but I do recognize there are differences between what is in the CRA at the moment and where it’s coming from, and the different acts that are applying to that and what might be in the context for the Youth Criminal Justice Act.
Senator Clement: If we could get access to that further information, that would be great. Thank you.
Mr. Westmacott: We’ll work on it.
Senator Clement: I will go on a second round, if there is one.
Senator Dalphond: Thank you.
To follow up on the first answer that you gave to Senator Clement, you said there are statistics that show that there is a point in time where those who have a record are behaving like those who have no record. Does that point correspond to the three and five years that Bill C-31 was trying to reintroduce?
Mr. Westmacott: Thank you very much.
The evidence is varied, because it depends upon the type of crime, the history, et cetera. I will acknowledge that there is more work that needs to be done to have a complete data set around recidivism and reoffence rates. A lot of it comes down to the definition of what a reoffence is and how that all plays out.
In the majority of the studies that we have seen, it does show that, for summary convictions, the majority of recidivism that will happen is within the first three years; hence why that “first three years” seems to play out.
Senator Dalphond: So the question now is about the testimony you gave before the House of Commons Committee on Justice and Human Rights. You were with Mr. Broom that day. You alluded to the implementation of the Canadian Victims Bill of Rights Act. I understand that it is part of your responsibility to look at that implementation.
Can I have your thoughts on whether that bill will achieve the correct balance between the rights of victims of crime and the offenders? Will the fact that records will expire automatically be felt by the victims as being unfair? Is there something that your group has been looking at? Should, for example, victims be notified before the automatic expiry to ask if they want to object to the automatic expiry?
Mr. Westmacott: Thank you very much for the question.
Yes, you are correct that there are some elements of my responsibility related to the Canadian Victims Bill of Rights Act, also referred to as the CVBR. One of the things that we try to do in all policy related to the criminal justice system is to strike a balance between the rights of offenders and also victims, and take into account the different perspectives that are in play.
An automatic sequestering of criminal records, where there are safeguards built in, sets up that balance. We’re taking into account a victim’s rights and the safeguards that need to be in place.
As I mentioned, we feel that the way Bill S-212, as it is presented does not necessarily provide the safeguards that the current system displays, and an automatic sequestering system could theoretically play as we’ve seen in other like-minded countries. That would be having the ability to revoke and cease the record suspensions if an individual reconvicts, for example. Also, having the automation for, say, less serious offences like summary offences tend to recognize that balance between victim rights and offender rights in providing an efficient system.
We do recognize, though, that reducing the barriers to obtaining a record suspension has a significant beneficial impact for the safety of communities, as it reduces the stigma around a criminal record. It allows for better reintegration into society, reducing recidivism, which also helps to reduce new victimization and potentially revictimization.
Senator Dalphond: Thank you.
Senator Jaffer: Thank you very much for being here.
I have some questions for you about how easily — you might have mentioned it earlier, but I was a little late — the RCMP’s Canadian Police Information Centre, or CPIC, can integrate automatic record expiry, as it is suggested in Bill S-212.
Mr. Westmacott: Thank you very much for the question.
I understand the RCMP will be here tomorrow, so they will be able to provide more of an answer. I would like to focus my attention more holistically on the system and some of the concerns I have raised, which are around how you would implement an automatic sequestering system with some of the work that we have been doing or under Bill S-212, recognizing that a lot of the records are held in provincial, territorial and municipal systems.
The fact that a number of records are not held by the federal government, especially summary convictions where there are no fingerprints taken, leads to an operational concern or challenge, if I can put it that way. It is not something that would stop it but is something that it would take time to address and to figure out the interoperability between the records systems that provinces, territories and municipalities hold and what the RCMP holds.
Senator Jaffer: When you were saying that, there were a lot of bells ringing in my head. You do not get all, and the RCMP does not get all of the records. Some are provincial. So is there a central registry, then, in the end?
Mr. Westmacott: You are correct that the RCMP does not have all of the records. Records are dealt with through the provincial system; summary offences tend to be held in the provincial and territorial system. It is when you get into an indictable or a hybrid offence that they end up in the federal system.
Senator Jaffer: You explained that.
Mr. Westmacott: Yes.
Senator Jaffer: But there isn’t a central registry.
Mr. Westmacott: Currently, there isn’t a central registry for all the offences that occur. That is one of the reasons why there needs to be some time to be able to determine how you figure out the interoperability between the provinces and the territories. These are some of the conversations we have been having with the provinces and territories in terms of what those challenges would be.
Senator Jaffer: What are you hearing?
Mr. Westmacott: Provinces and territories are supportive of an automatic sequestering for criminal records system, but they recognize that there are challenges in such a system, like the one that we are taking a look at.
Senator Jaffer: May I stop you? I don’t mean to be rude. You said, “challenges.” Can you expand on that?
Mr. Westmacott: I’ve been speaking about some already in terms of operability. If you are putting in an automatic sequestering system, how do you ensure that you’re capturing the criminal record that may be held in a provincial or a territorial record system?
For example, if there’s been a new conviction during the waiting period that’s held in the provincial system and there isn’t the interoperability for an automated system, it’s possible to miss a conviction there. And vice versa, namely, if you are not aware of a conviction in a province or a territory, you may not be automatically sequestering a criminal record that should be sequestered. There has to be some work to figure out the interoperability between the provincial and federal systems.
Senator Jaffer: You completely lost me. I used to work in the criminal courts and prosecutors would always produce the record, as they said. How would they get the records? You are saying it’s in two different groups.
Mr. Westmacott: Right now, when somebody applies for a pardon, they have to produce their criminal record. There is a responsibility on the individual to obtain their criminal records that are housed in both the provincial system and the federal system, if applicable, and provide that to the Parole Board. Under an automated system, that would not be required. It would be up to the system itself to be able to identify when those records would be done. That is the ultimate goal because we see that there are a lot of barriers for individuals to be able to obtain the application completely. Part of it is because they have to go to various places and there are costs and time associated with that. Ideally, an automated system is where you want to go. You just have to make sure that there is the time and place so that we can set it up so it’s done right.
Senator Batters: So, Mr. Westmacott, this one is continuing on in somewhat this same vein. In recent years, we had Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis which followed the adoption of the Cannabis Act adopted by Parliament. That allowed individuals who were convicted of simple possession of cannabis to apply for an expedited record suspension.
During our committee’s study of Bill C-93, the minister at the time was Ralph Goodale and he was the Minister of Public Safety and Emergency Preparedness. He indicated that the Government of Canada had chosen an application-based process for simple possession of cannabis because there was no way of determining from the data found in the Canadian Police Information Centre database what the substance was for which an individual convicted of drug possession. Therefore, it was required:
. . . to check related police and court documents, and those documents are kept by police services and courthouses all across Canada, each with its own record-keeping system and most of them not under federal jurisdiction. Some of those systems are high-tech, but many of them are just papers in filing cabinets in the basements of courthouses.
To proactively identify people convicted only of cannabis possession, the Parole Board would have to go through all of those records manually. It would be a colossal, costly and slow endeavour, and people would end up waiting for years. On the other hand, when the Parole Board receives an application, it can zero in right away on all of the relevant documents, and it should be able to process those files in a matter of weeks.
Given that, do you think the Parole Board will face similar obstacles, then, in implementing Bill S-212?
Mr. Westmacott: Yes, that is the point that I’ve been trying to make. With the current system as in play and the current records held both in provinces and territories and local levels versus the CPIC, that is exactly the situation that would be faced. It would be a difficult process to determine exactly when somebody would be up for an automated pardon. We need to take the opportunity and the time to ensure that interoperability and to achieve the common goal of an automatic sequestering of criminal records to ensure that we are fully capturing the full record and are providing the record suspension appropriately.
Senator Klyne: Welcome. One would think it’s generally accepted that criminal records themselves act as a deterrent to crime. People are less likely to commit criminal behaviour if there are serious consequences for their actions. There are few more serious consequences than a criminal record.
If criminal records are allowed to expire, do you think this would have any impact on crime rates in Canada?
Mr. Westmacott: Thank you very much for the question. We believe that a well thought-out system to allow for a record suspension can support the reduction of crime within Canada because it addresses barriers that folks living crime free still face. That is, barriers to education, housing, employment opportunities volunteer opportunities, et cetera.
Having a criminal record is a significant barrier to be able to reintegrate into society after you have done what you needed to do to rehabilitate, to recognize the crime that you have done and to live crime-free. The record suspension program, as it exists and as it could be done under an automatic sequestering system, allows for a certain period of time to support that individual and to ensure there is that crime-free period. Suspending the record allows for that individual, as I said, not to face those barriers that may actually result in them reoffending because if you can’t get a job or can’t find housing, your opportunities are much lower than they used to be. We feel that a record suspension system is an important part of reducing crime.
Senator Klyne: Your comment was about a well thought-out program. I don’t have a question around that but is there any other way to develop a program other than “well thought out”?
When they are incarcerated, they have to serve their time. Are they getting — and I’m probably referring to the federal penitentiaries — rehabilitation programs, or are they just on the shelf? That is, they can take them if they want to do so? Are they compliant to take rehabilitation programs? I would think that would lend to this well thought-out program to improve the odds of their crime-free period on expiry or waiting to go through a crime-free period.
Mr. Westmacott: Every individual that goes into the federal correctional system has a correctional plan developed for them in conjunction with experts in the field. This is done by Correctional Services Canada. It includes programs to support the rehabilitation and reintegration once they are released from the federal system.
Senator Klyne: I have been in some federal penitentiaries and interviewed some of the guests, or inmates. Quite often, I hear that they aren’t getting rehabilitation programs offered to them. It’s concerning that they don’t get reintegrated with some rehabilitation programs behind them. It would stand to reason that that would increase a safe integration for both themselves and the community. Do you get to see the record that indicates they took rehabilitation?
Mr. Westmacott: When an individual is going for parole, part of the process is to determine what the programs they did while incarcerated in the system and do those support the rehabilitation of the individual. The stated purpose of the correctional system is to rehabilitate those individuals, and so the correction plan, as laid out, is meant to do that.
I will take back your comment that you are hearing that they are not having access to that, and I will discuss that with colleagues.
Senator Tannas: Thank you for being here. Just following on Senator Klyne’s question. I got that from your opening statement. I almost thought you were the proponent of the bill in the sense that you had a lot of good things to say and I didn’t hear the “but.” I was waiting for the “but,” but I didn’t get it.
I did hear you just say — maybe you can clarify — that in a perfect world, if there weren’t all these pesky problems with police records, et cetera, in a perfect world, you think it would be good for us to automatically suspend records after a period of time. If I misunderstood that, then please say so. When I say “you,” I mean you in your capacity as the leader of the policy engine within your department.
If that’s the case, I just want to ask: Why hasn’t this been a major preoccupation of your group and all the departments to do it? It seems the answer we are to give to Senator Pate is if only the world were perfect, this would be a lovely idea. That’s number one.
It strikes me that somebody who will on purpose work — lift a finger and make the effort — to say, I want to get rid of this stain on my personal reputation, that is a good thing. It’s a cathartic and affirmative thing. Those that can’t do that or refuse to do that — and if you should have worked as hard as you should have to enable them to make an application — then it shouldn’t be that hard to make an application. We have heard about how hard it is for decades, and it was expensive and it was difficult and blah, blah, blah. Why wouldn’t there be efforts to get that done and leave that one last step, which is for the person to say, I want to get this off my back, I’m ready to move forward without it? For those who can’t be bothered, maybe they ought to have a record for a while longer?
That’s a question that I have as somebody who has had as little to do as possible with the legal system that I got as a citizen.
Second, what is your position on the reduction of the waiting time, from 10 to five years? What was your position when the last government was proposing it and your predecessor who came before a committee like this?
Mr. Westmacott: Thank you for the questions. There are a number in there. I will try to get through them all.
The Chair: Mr. Westmacott, take a little more than a minute and a half. Senator Tannas asked three or four big questions and I think you should have a chance to give a good answer.
Mr. Westmacott: Thank you very much, chair.
First of all, in terms of the question about a perfect world — I do recognize and appreciate the recognition that I’m not speaking for myself; I’m speaking for the department. There is a recognition that, yes, a record suspension after a certain period of time is a very good thing, with some restrictions that are in place.
Senator Tannas: Automatic?
Mr. Westmacott: Automated is a very admirable goal that we are proceeding, as I have indicated. You talked about our preoccupation. We have been working on how you would implement an automated sequestration for a criminal records system for a number of years now, including consultations with provinces and territories and a number of stakeholders from Indigenous communities, the criminal justice system, police, law enforcement, victims’ organizations, et cetera. We have done the consultations to determine what would be the best way, what the gaps are, what the barriers are, what the challenges are and what the ways are to overcome some of those challenges.
I think that an automated system for some offences is what the consultations are leading us to conclude is that for those less serious offences, allowing for the more serious offences, the indictable offences to still go through the Parole Board system.
In terms of the notion of those that are not able to proceed or that don’t proceed with applying for a record suspension and, in fact, maybe that they should be doing that, what I would say is that there are a number of barriers for a number of individuals in terms of the process. We’re trying to attack it with a multipronged approach. In both we have seen the reduction of the costs from $657 down to $50 to try to remove that financial barrier.
As I mentioned, there is also a new contribution program that the government has launched, the $18 million over four years that is to support organizations that will help individuals who proceed with their record suspension. These are non-profit organizations, volunteer organizations, et cetera, to support those individuals in obtaining that. We have seen that there are some for-profit companies out there that in some cases take advantage of individuals trying to do that, and we have seen a lot of issues with that. The $18 million funding over four years is to try to address that and support the individuals.
We also do recognize, though, that there are a number of challenges that remain with individuals, whether it is literacy issues, awareness issues. In some cases, individuals that are coming out, as I mentioned, it is very difficult for them to obtain jobs, employment or education because of the record they have. As a result, they are unable in some cases, even if they want to, to find the time or the resources to go through the process to be able to get the application in play.
[Translation]
Senator Dupuis: To continue in the same vein as Senator Tannas, I don’t want to be a killjoy, but I would like us to stay in the real world. I am wary of the perfect world and especially of those who would define it.
Here’s what I want to know. I think you’ve started, and even managed to pinpoint fairly well, the reasons that led you to conclude that, for certain offences, an automatic suspension system is a good thing.
When do you plan to implement it?
[English]
Mr. Westmacott: Thank you very much for that question.
[Translation]
Senator Dupuis: Let me explain why I am asking the question. In this place, we study bills that are introduced by the government, senators or members of Parliament. However, if instead of being engaged in dealing with bills that are beside the point, but not too far off, wouldn’t it be better to ask this question: You had the same idea as her, at least for some of what is in this bill, so when are you going to get it done?
[English]
Mr. Westmacott: Thank you very much for that question. Yes, to reiterate, we are supportive of the intent, but not all of the clauses within Bill S-212, given that some of the fundamental parts of the Bill lead to challenges that would be very difficult to operate and does not provide the safeguard that I had previously mentioned.
[Translation]
Senator Dupuis: Yes, absolutely. I understand that. My question is addressed to you, because we don’t want to do the wrong thing, as far as possible; we’re sensitive, we don’t want to do the wrong thing.
You seem to have a solution that is partly in line with this bill. Rather than doing the wrong thing by passing Bill S-212, we would like to know when your department plans to implement this system.
[English]
Mr. Westmacott: Thank you very much. What I will say is I do not want to speak for the government on when something will be going forward and speak to the legislative agenda of the government. That is not my role.
What I would say is that in the consultations with provinces and territories, they’ve pointed out a need to continue the work over a few more years to be able to determine the interoperability and some of the challenges that we have in play.
As I mentioned in my speech, we do expect that it would be a longer-term endeavour, but I cannot be specific as consultations continue and work continues with provinces and territories to determine how we would address some of these concerns.
[Translation]
Senator Dupuis: You mentioned a very important issue, which is the safety of communities. It’s part of your mandate to ensure the safety of communities, and I’d like to connect that to the United Nations, or UN, 2030 Agenda for Sustainable Development. One of the UN goals is to promote sustainable development in communities.
You say it could take several years; can you be more specific? We’re hoping to come out of the pandemic, which obliged the federal government and provinces to work together to find vaccines, to organize systems, and so forth. Can you be more specific as to the number of years? Who anticipates that it will take years more? Does the federal government have incentives to encourage provinces to be more specific about the number of years, because we could still be asking the same question 20 years from now? I understand perfectly well that these are technical reasons.
What if I leave New Brunswick and go to work in Ontario and then Alberta because wages are higher, and every time I commit minor offences I come back to my area?
You talked about the barriers people face in clearing their criminal records. Could the federal government convince the provinces to agree to a shorter timeline rather than a long-term one?
[English]
Mr. Westmacott: Thank you for that question. There are two elements to this. One is that while I mentioned there might be a few years before we would be able to have all of the details figured out in terms of an automatic sequestering criminal records system, it does not mean that there will not be action occurring as of now and going forward. For example, the $18 million that I referred to are actions that can support.
We have a good relationship with the provinces and territories, and, as I mentioned, we have done consultations with them over the past year and continue to work with them in terms of finding solutions to the outstanding issues.
I do not want to get bogged down in terms of a time frame because I do not have the answer to that. But I would stress that we do continue to have a good relationship with provinces and territories, and there is support for the automatic sequestering of criminal records work. It is just a recognition of some of these issues that we need to work on, but we continue to work with provinces and territories diligently to try to advance this as fast as possible.
The Chair: Thank you. Mr. Westmacott, I have one question before we move to the second round, and it borrows from some of the questions that Senator Jaffer asked.
I have had a similar experience to hers, although most of my clients were convicted, and therefore the prosecutors pulled together the criminal records of my client quickly and comprehensively. Police officers have access to information when they are arresting people that seem to be more than satisfactory to them. I do not hear the police going around saying, “These records are in all of these different locations. How will we ever figure out what we are doing?” The system on the prosecution end of criminal justice seems to access this information just fine, thank you very much.
Then, when we try to work at the other end of it, the answer seems to be, “This is too hard. They are in too many places.”
Can you give me an idea of why it works so well for prosecutors and police officers to access the criminal record information that they need, but the system cannot do the same to expunge records?
Mr. Westmacott: The key difference that I would see is the application concept versus the automation concept. When you are going through what the police have at hand, they are actually asking for the information for this individual and seeking the information for the individual. Under the current application system that works because we get the information that is required to be able to have the access to it. In an automated system, you don’t actually have all of that. There is a huge consequence in terms of misidentification of individuals as well. That is why fingerprinting is very important because an individual’s name is not sufficient enough to ensure that the criminal record that you are dealing with in this jurisdiction and in that jurisdiction are actually the same individual. It does come down to the processes in play.
Now, I do not want to speak too much for the police system because I do not work with them.
The Chair: Thank you very much. We will now begin the second round, maybe three minutes each, if that’s acceptable.
[Translation]
Senator Boisvenu: As long as the answers are brief.
Thank you for being here.
Do all provinces have a computerized system for people incarcerated in provincial institutions?
[English]
Mr. Westmacott: For individuals detained in the federal system, they would be covered under the CPIC, because it is a federal repository.
[Translation]
Senator Boisvenu: Quebec still keeps paper records. It does not have a computerized system.
Do you know what percentage of first-time federally incarcerated offenders were sentenced to less than two years?
[English]
Mr. Westmacott: I do not have that data.
[Translation]
Senator Boisvenu: In 2012, it was 50% of offenders.
You are aware that the Auditor General issued a report in 2018 criticizing the Canadian prison system and Statistics Canada for not calculating the recidivism rate of offenders incarcerated in provincial jails and those tried in municipal court.
My question is this: How are you going to manage the 358,000 people who are incarcerated in provincial prisons each year, while at the federal level, 14,000 people are incarcerated in federal prisons each year? How are you going to manage the staggering number of people who flow through provincial prisons?
[English]
Mr. Westmacott: I guess that I do not understand the question in terms of how we would manage them. In terms of the records?
[Translation]
Senator Boisvenu: Information about the incarceration of the 358,000 Canadians sentenced to less than two years in prison will not be shared with the Parole Board of Canada. It is up to the Parole Board to monitor these offenders to ensure that they do not commit further crimes.
On a human level, how can we annually track 350,000 people when we have no information on their criminal records?
[English]
Mr. Westmacott: Thank you very much for the question. I think that points to the point that I have been making. The differences in the record systems among the provincial, territorial and federal systems are something that we need to be working on to ensure that there is interoperability between the systems before we can move to an effective automated system.
[Translation]
Senator Boisvenu: As I understand it, if this bill were to go into effect tomorrow, as currently written, it would be premature.
[English]
Mr. Westmacott: As I indicated in my comments, the bill as written provides a number of challenges that would make it very difficult to implement if it were implemented and go into effect immediately.
The Chair: Thank you, Mr. Westmacott, for the brief answers.
Senator Clement: I want to follow up on questions from Senator Dupuis. Where is the sense of urgency here? “We can’t operationalize”: We have heard this before, and the people who are hearing it are people that I have represented. I have represented many clients over the years in their application for pardon process. They are Black folks, marginalized folks, racialized, they have literacy issues, all of those issues, and they give up, and they walk away from my office. They can’t.
So why not put a bill like this in place with a sunset clause and say, “We’re putting pressure on you”? Because we can sit here and say that we cannot operationalize, but when I say that to my clients, that has a whole piece of disrespect attached to it. They have served their sentence under the law, and so this inefficient application process should not be added on to their sentence. That is not the point of this. They have served their sentence. They are crime-free and eligible. How do you answer that? There is a sense of urgency that is missing.
Mr. Westmacott: Thank you very much. I would stress that there is a significant sense of urgency among the government to try to address the issues that remain so that when a system can be put in place it is done so as soon as possible. Myself, my team, working with the provinces and territories, is very much seized by this issue and working very hard to try to address the issues in play. What we want to avoid is putting in place a system that would not achieve the result that they actually are intended to do.
Senator Jaffer: You keep on saying, “We have goals; we are going to do it.” For a person who is convicted and is illiterate, who is vulnerable, if you guys cannot put it together, how can they? What is your goal? How many years?
Mr. Westmacott: Thank you very much for the question. Recognizing, for sure, that there are a number of challenges that individuals are faced with in terms of going through the record suspension system, that is why we are actually taking a number of other approaches to try to address some of the challenges that are there. For example, the contribution program that I have previously mentioned, the $18 million over four years, which is there to support individuals in actually obtaining their record suspension.
Senator Jaffer: Why not put it into a bill like this, and they would not need this money?
Mr. Westmacott: As I mentioned, the concerns that we have for a bill like this is that we would not be — it would be very, very difficult to implement this bill.
The secondary part of that is that some safeguards that we feel are very important are not in this bill including the ability to revoke a record suspension or, in this case, a record expiry, and the notion that this would apply to all offences and that it does not allow for the safeguard of going through the Parole Board system in terms of existing more serious offences.
Senator Jaffer: I am so frustrated with your answers. You say, “not now, not now, not now.” Then when?
Mr. Westmacott: As I have indicated, we are working very diligently with provinces and territories to address the outstanding concerns that are in play. We would like to move forward with an ASCR system, an automatic sequestering of criminal records system, as soon as possible. As I said, there are a number of challenges that we continue to work through and work through very aggressively.
Senator Jaffer: Thank you.
The Chair: Thank you.
That concludes the time that we have for our discussion with you, Mr. Westmacott. I extend my thanks and the thanks of the committee for the dialogue that we have had this afternoon.
For the second panel, we have Ian Broom, Director General, Policy, Planning and Operations, Parole Board of Canada; and Lisa Noseworthy, Director, Clemency and Record Suspensions, Parole Board of Canada. Welcome to you both. As I think you were anticipating, between the two of you, a five-minute presentation which will be then followed by questions from senators. Take it away.
Ian Broom, Director General, Policy, Planning and Operations, Parole Board of Canada: Good evening, Mr. Chair, and honourable members of the committee. Thank you for the invitation to speak with you today in relation to Bill S-212. I would like to start by introducing my colleague and myself. My name is Ian Broom, and joining me this evening is Lisa Noseworthy, who is also with the Parole Board of Canada, otherwise known as the PBC. We’re pleased to appear before you today and to provide the committee with information about the record suspension program to help inform your study.
The PBC is an independent administrative tribunal that is part of the Canadian criminal justice system, makes independent, quality conditional release record suspension and expungement decisions, as well as clemency recommendations.
The PBC contributes to the protection of society by facilitating, as appropriate, the timely reintegration of individuals as law-abiding citizens. Public safety is the primary consideration in all PBC decisions.
Under the Criminal Records Act, the PBC has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension. A record suspension is designed to support the sustained reintegration of a person with a criminal record back into society. It removes the stigma of a criminal record and assists people to access things like housing, employment, education and volunteer opportunities.
To be eligible to apply, a person must have completed their sentence and demonstrated that they have been a law-abiding citizen for a prescribed number of years.
Record suspensions can be revoked or cease to have effect if the person is convicted of a new offence, is found to no longer be of good conduct or to have made a false or misleading statement when they applied.
On January 1, 2022, the cost to apply for a record suspension was reduced to $50. There is no application fee or waiting period for cannabis record suspensions, which were introduced in August 2019. This has made record suspensions more affordable to the wider Canadian population, including those from racialized and marginalized communities.
In terms of application volumes, in fiscal year 2021-22, the PBC received 10,981 record suspension pardon applications, which represent a 20% increase from 2020-21.
For fiscal year 2022-23, we are on track to receive approximately 15,500 record suspension applications, which will represent a further 29% increase in volumes.
Individuals can apply directly to the PBC for a record suspension. They do not need to use a lawyer or third party company. Information on the application process is available on our website, including the official application guide and forms, as well as various resources such as frequently asked questions and how to avoid common mistakes.
The board also has a dedicated 1-800 telephone line and email address that applicants can use to get help with their application.
Once received, the PBC screens all applications for completeness and eligibility, and conducts investigations to help inform board members’ decision-making.
Due to various court decisions and legislative change over the past few years, record suspension applications are currently processed according to four different legislative schemes. The criteria for processing applications differs based on the date of the commission of the individual’s first offence, and the version of the Criminal Records Act in force at that time. This complexity is a challenge both for the PBC in administering the schemes and for the applicants themselves.
Applications for simple possession of cannabis, as mentioned, follow their own legislative scheme, which includes no fee and no waiting period.
Over the past three years, from 2019-20, the most common criminal convictions for which a record suspension or pardon has been requested are, driving with more than 80 milligrams of alcohol; theft under $50, $200, $1,000, $5,000; breach of the Controlled Drugs and Substances Act; assault, not including common assault; driving while ability impaired.
The PBC develops an annual report on the record suspension program which is submitted to the Minister of Public Safety and tabled in Parliament.
Since 1970, more than 500,000 Canadians have received pardons and record suspensions. Of these individuals, 95% have remained crime-free, which demonstrates the success of the program.
In closing, I want to thank the committee, again, for the invitation today and look forward to answering your questions. Thank you.
[Translation]
Senator Boisvenu: Welcome to our committee. Thank you for being here. I’d like you to tell us about your hotline for people seeking a pardon. Have you conducted a study on the level of satisfaction among people applying for a pardon, whether this line is effective or whether people have to wait 20 or 30 minutes before they get an answer?
[English]
Lisa Noseworthy, Director, Clemency and Record Suspensions, Parole Board of Canada: Thank you for the question.
At this time, we have not conducted any surveys. I will definitely take it back to our public affairs and partnership division to see if that is something we can conduct.
We have prerecorded messaging so that applicants can get the information they need if it is brief, as quickly as possible, but there is an option to select to speak to an operator. We do have clerks answering that line from 8 a.m. to 6 p.m. eastern time. They can get basic information from the clerk. We are very careful about making sure we do not release any information without confirming identity.
When the clerk cannot answer that question, they can be referred to an officer, as well as the intake supervisor for further information.
[Translation]
Senator Boisvenu: It’s important to know people’s satisfaction level. There are many criticisms from people who apply for a pardon; they say that the process is cumbersome. I think it would be useful to hear your feedback.
My next question is very technical. Earlier, I was telling the other witness that there are about 15,000 people passing through federal prisons every year, but there are 358,000 passing through provincial ones. Does the Parole Board of Canada have all the information on those incarcerated in the provincial system?
[English]
Mr. Broom: Thank you for the question.
I would say that there are statistics available that are compiled on the number of individuals who are in provincial custody, as well as federal. In terms of the records of all those individuals who are currently incarcerated, we don’t have access to that.
[Translation]
Senator Boisvenu: Which means that a person who has been through the provincial system receives an automatic pardon after two or three years. The Parole Board of Canada’s role is to check on all of these people to make sure they haven’t committed a crime during their grace period.
How will the Parole Board of Canada, with the resources at its disposal, verify that the 350,000 people who flow through a provincial prison and are released have not committed a crime during their grace period and that a pardon is not automatically granted even if they have committed crimes? How will you monitor that population?
[English]
Mr. Broom: Thank you for the question. I could approach this from a couple of different directions.
In terms of supervising offenders, at the Parole Board of Canada we make condition release decisions. Correctional Service Canada would do the supervision in the community.
In terms of an automated system, would an automated system have access to all of the information at the provincial and territorial level in terms of completion of the sentence? For example, have fines been paid, et cetera, which would inform when the eligibility period would commence?
An automated system, if it were implemented today, would not have that information in it.
[Translation]
Senator Boisvenu: I’m going to ask you a more practical question. With the staff that you have at the Parole Board of Canada, tomorrow morning, should this bill pass, you will have to monitor the federal and provincial populations, so in excess of 370,000 cases annually. Will the board have the capacity to handle those 370,000 cases?
[English]
Mr. Broom: Thank you.
The Parole Board does have responsibility for conditional release decision-making. Also, the Parole Board has responsibility for making record suspension expungement decisions.
When we are talking about supervision of offenders, again, with the Parole Board of Canada —
[Translation]
Senator Boisvenu: Let me stop you there. That isn’t my question. At present, the Parole Board of Canada receives a notice of release from the Correctional Service of Canada for an offender held at a federal institution, so you manage about 15,000 releases annually, after the offender has served either one-third or two-thirds of their sentence. Tomorrow morning, you will be told that you have 300,000 more cases to manage. My question is simple. Do you have the capacity and resources to handle those additional 350,000 cases, on top of the 15,000 you are currently handling?
[English]
Mr. Broom: Thank you. That would be a question that would probably be best directed toward Correctional Services at provincial levels if we’re talking about supervision.
[Translation]
Senator Boisvenu: The bill mandates the Parole Board of Canada to monitor these people and ensure that they have not committed a crime. The board has the mandate. It’s not the Correctional Service.
I’ll go back to my question. If, tomorrow, you have to process an additional 350,000 cases, will you have the capacity in terms of human resources to process those cases and ensure that people don’t receive automatic pardons if they commit crimes? My question is simple.
[English]
Mr. Broom: Thank you. If we looked at this from the perspective of, would we have the resources available to be able to support the implementation of Bill S-212 as it is written today, I would say that we have not conducted a detailed analysis of what the cost implications might be from a staffing perspective. For example, one element in the bill is that it increases staff decision-making relative to board member decision-making. In addition to that, we would need to be considering the fact that under an automated system some of the responsibility would fall to the RCMP rather than the Parole Board. But at this point we haven’t conducted a detailed costing analysis regarding Bill S-212.
Senator Dalphond: Under the current system, how does it work when somebody makes an application? He has to provide the report he would like to be expunged or extinguished, disappeared or whatever, the pardon. But if at the same time, you were charged for something else but it’s a summary conviction, or he was even charged and found guilty but still a summary conviction and does not disclose it, how do you check that? How can you be aware of it?
Ms. Noseworthy: Thank you for the question. Under the current application process we require a number of documents, one of them being a local police record check, which we rely on to include additional information that is not available or additional convictions that are not available in the criminal record. So, the applicant will provide their criminal record if one exists from the RCMP to the local police check for the area that they are living in or have in recent times which include that information as well as non-conviction information that helps substantiate the analysis of conduct and whether the person has been law-abiding and leading that kind of lifestyle for the board member.
Along with that, we include court documents which also contain some of those additional convictions to make sure that we have the full picture of the person’s criminal record that needs to be sequestered or kept separate, apart so we’re not issuing or granting or awarding partial pardons either.
Senator Dalphond: If the person lives, let’s say, in Ottawa, but choose to live in Montréal, you will ask for a police statement from both Montréal and Ottawa?
Ms. Noseworthy: Yes, depending on the time frame. If the person has been in Ottawa for a decade, no. But if the person has been recently relocated from Montréal to Ottawa, we will ask for both of those local police records.
Senator Dalphond: And if the person lies he was in Montréal for the weekend, got into a bar dispute, charged with assault, it’s before the municipal court, you will not know about that?
Ms. Noseworthy: It could be on the criminal record or in some cases we will find it in checks we do with certain databases. We check a number of databases as part of that. It’s possible it gets missed if it’s purely summary and not housed in the national repository. It’s rare.
Senator Dalphond: It’s self-relying. You are relying on self‑identification, essentially?
Ms. Noseworthy: Yes. In that case, the revocation process would come into play if we found out that person had omitted that information on their application.
Senator Dalphond: Are you equipped for the system, it’s automatized to a certain extent? You bring their name in the systems and then the computer will find out if there is something in the federal database and maybe through some connections you have through reported cases, or things like that, or courthouse files that are sometimes accessible on the web?
Ms. Noseworthy: Currently the system that would allow us access to all that information doesn’t exist as our public safety colleague mentioned in his remarks. What we do have is the information and the court documents that the applicant is asked to provide, the information that’s in the local police record checks and on the criminal record. And then as part of our investigative work, we do have some limited access to certain databases which might prompt other information to come to light.
Senator Dalphond: What percentage of cases do you find that the self-declaration was not fully — let’s say some elements are missing.
Ms. Noseworthy: If some elements are missing, we go back to the individual, because there is a question on our application process which says, were you convicted of anything that’s not on your criminal record and because of the legal technicalities around that question, we say that we have discovered this, can you please confirm it is, in fact, your conviction. Most people will say, oh, yes, I forgot that it was or we have had instances where it was my twin brother and a mix-up. We do go back and ask the applicant to explain. In most cases, it’s confirmed that it is, and then it will go forward to the board member for review.
Senator Dalphond: Last question. Is there a percentage of those that are rejected or at the end what is the percentage that is granted?
Ms. Noseworthy: From a statistical perspective, speaking in line with your question previously, if we find a conviction that wasn’t available at the screening stage, it can impact the person’s eligibility, and we will discontinue processing the application. Statistically speaking, globally, over the last four years, our positive outcomes are actually quite high, into the 95% and 96% over the last few years for grants and orders.
Senator Dalphond: If they have full disclosures, is there still rejections possible?
Ms. Noseworthy: Yes. Under the current legislative scheme and the previous one, it is possible that people will be denied or not awarded a pardon or record suspension.
Senator Klyne: I was going to ask a question along the lines of Senator Boisvenu but I’ll move over to another one.
In the evidence you gave at the Standing Committee on Justice and Human Rights meeting on March 29, 2022, you mentioned the Parole Board’s working group on diversity and systemic racism and the board’s committee on victims has a chairperson with an Indigenous circle as well. Is this working group committee and Indigenous circle have any views on Bill S-212 that you could share with this committee?
Mr. Broom: We have not canvassed the chairperson’s Indigenous circle specifically around Bill S-212.
Senator Klyne: Okay. Thank you.
A question for Ms. Noseworthy. Two, actually. Schedule 1 of the Criminal Records Act lists various serious offences including sexual offences involving children and human trafficking. My questions for you are, number one, in your view, should offenders who have been convicted of these crimes be entitled to have their criminal record suspended or should they be subjected to an alternate process for serious crimes; and, number two, what policy considerations, research, studies, evidence and precedents inform your views on this question?
Ms. Noseworthy: So as the administrator of the program and the board as an independent tribunal, I don’t believe I would be able to answer that question today.
Senator Klyne: Mr. Broom?
Mr. Broom: I would not conjecture on the government’s policy position on that either.
Senator Klyne: Okay. I’ll ask another question and whoever wants to answer, go ahead. The Canadian Human Rights Act and many provincial human rights laws, but not all, prohibit discrimination against individuals with a criminal record or a record suspension. My questions for either of you are, in your view, are these provisions effective at preventing discrimination against such persons, and number two, does your answer to this question influence your views on whether the amendments in this bill are necessary?
Mr. Broom: I wouldn’t have the information or the perspective in terms of the impact of the legislation. I would say that when we do talk about the value of having a pardon or a record suspension, it does remove barriers in order to access employment, housing, education, and so in that sense, I think that it is valuable, but I wouldn’t have information on whether or not that specific element is effective from that perspective.
Senator Klyne: I will just go back to Senator Boisvenu’s questions. If I understand correctly — and I guess I’m looking for affirmation of this — as it was described, 300,000-some files that may need to be pursued, the Parole Board would not be in a position to have access to the data it would need and other resources to effectively operationalize this bill with expeditious results. Is that correct?
Mr. Broom: Thank you for the question.
At this time, the program we’re administering is application-based, so we do have a very good picture of the number of folks who approach the Parole Board seeking a record suspension or a pardon. If we were to implement a scheme where there was a very high volume of files to consider, then we’d have to look at our staffing levels, and we’d have to make sure that we are ready and that things were in place, but if we’re discussing an automated system, that would be a slightly different challenge in that the RCMP would likely take a more fundamental role in those decisions regarding the records. As mentioned before, in order for that to be implementable, there would need to be certain interoperability challenges that had been addressed.
Senator Klyne: If there is a round two, I’ll go on it.
Senator Tannas: Thank you for being here.
Ms. Noseworthy, how long have you worked in the department that you lead now?
Ms. Noseworthy: I have been with the board six and a half years, three years in this position and three years as a manager in the same position.
Senator Tannas: Over the last six and a half years, how much has the application process improved or been streamlined? Is it radically different and more efficient than it was six years ago or than what your colleagues may have told you it was a decade ago, et cetera? Can you give us a picture of just how far — and it might not be a pleasant answer — has the process improved?
Ms. Noseworthy: Over recent years, the application guide has been changed a little bit. We have tried to trim down the steps. When Bill C-93 was being discussed, we also did a plain language review of the guide as well for the regular stream and tried to take out some of the more cumbersome language.
The guide and the process right now are built on the current structure; it’s built to support board members in their decision-making to make sure that eligibility criteria and the assessment criteria that are in law can be addressed through the verifications that we do. Also, as has been discussed by our Public Safety colleague, the centralized system that would allow us to not ask for some of the information doesn’t currently exist.
We have been working with the system we have. Because there are certain components of the guide that are absolutely essential, our focus has been on website tools; making sure that our website has a number of frequently asked questions and there is a tutorial in place. Because we’re administering those four legislative schemes, we have an eligibility flowchart to help guide applicants in the process. The 1-800 line, as mentioned, is available, as is email.
We are actively working with the community support groups that Public Safety mentioned previously in providing outreach, and we have a direct person who is answering questions coming from those funded groups to help applicants as well.
We have also undertaken the work of developing an online application portal. It is still two years out, but that work is actively going on to modernize our case-management system and also develop an application portal that should make the process simpler and quicker. That will take a little bit more time.
Senator Tannas: How do you account for what I have just heard today, not necessarily from witnesses, but from eminent legal people who have described circumstances where people just give up — that it’s too hard to make the application? Does that disturb you? Does it surprise you? If it does surprise you, how do we reconcile that? If it doesn’t surprise you, how is your group driving ahead — and maybe this is for Mr. Broom, too — to make it better? It seems odd to me that we would say that the system is so bad that what we’re going to do is give up on it and we’re going to make it automatic. That has a whole bunch of other problems.
Can’t we make the system good so that people across all social and educational strata can make an application in a reasonable amount of time?
Mr. Broom: Thank you. I would start by saying that there has been progress in improving access to a pardon record suspension. I think the reduction of the fee to $50 was —
Senator Tannas: I understood that.
Mr. Broom: — a step in the right direction. Also, as our colleague from Public Safety mentioned, the investment in those community organizations to assist applicants is important as well.
There have been some steps. As my colleague, Ms. Noseworthy, mentioned, we are also working on an automated system that should be completed sometime around March 2025 that will allow for a slightly more streamlined approach.
I think we have made some strides in terms of improving access and assisting applicants in applying to the program.
Senator Tannas: Thank you.
Senator Jaffer: Thank you to both of you for being here. I have found your presentation very interesting, and many more questions have arisen.
I am putting aside the questions I had prepared to ask you, but from what I hear from you, you have so many studies and all kinds of information. So if you are doing studies, do you know the profile of a person that is convicted and what background they have? Because you have so many studies, you must obviously have a study on that.
Mr. Broom: Thank you. We do collect a fair amount of information from applicants as we provide an overview in terms of sentence, identifying information, et cetera. We don’t collect a lot of demographic information that we would then be analyzing based on the applicant’s profile, in that sense, if I understand the question.
We don’t have a lot of studies that would be looking at the profile of applicants. The short answer is that we don’t have that.
Senator Jaffer: To me, that’s very troubling. You said that you don’t need a lawyer. So many people who come to us — and even lawyers — get troubled by the applications. So I’m very concerned as to where you get this information that you don’t need a lawyer to fill in these applications.
Ms. Noseworthy: We are endeavouring to make the process as streamlined as possible, but under the confines of the current Criminal Records Act and the lack of a centralized system, there are documents that we absolutely need to have. Our messaging surrounding not needing a lawyer or third party is to really try to deter people from spending quite a bit of money on a third-party company where they could go to the community support groups that Public Safety is helping to fund and get that assistance there. We are trying to work with them — there is a manager or coordinator who is tasked with helping those folks out.
I understand there was a lot of documentation with the process, but we’re hoping that people will start reaching out to us more through the 1-800 line and through the [Technical difficulties].
Senator Jaffer: Your efforts are very laudable, and I appreciate what you have said, but you are not there yet, obviously. I think we can establish that people do need lawyers, but we’ll move on from that. You said that you have given pardons to 500,000 people. Do you know what the profiles of those people are? What category or what groups they are from?
Mr. Broom: We don’t have information on the groups in terms of demographics. Those individuals who have applied or have had a record suspension ordered, pardon granted or issued. We don’t have the demographic information. We do have information, for example, regarding the types of convictions on the records.
Senator Jaffer: What types of convictions, mainly? What percentage is for drinking and driving? What percentage of the pardons are for that?
Mr. Broom: I have the information in front of me in the annual report, but I don’t want to take the committee’s time in fishing it out.
Senator Jaffer: If you can provide that to the clerk.
Mr. Broom: Yes.
Senator Jaffer: How many on drinking and driving and how many on drug offences. I can’t really ask you my question, because I was going to say that from what you spoke about earlier, I thought that a majority was on those and not on the serious offences. Am I correct in that impression?
Mr. Broom: Thank you. Yes, you are correct. I did list those top five categories, which would be the majority.
Senator Jaffer: As parliamentarians, we work with people, and when we go home, people say to us, it’s an impossible process; we give up. You are hearing us say that. So obviously, we have to work together to improve it, because this is an impossible process. Would you agree with that?
Mr. Broom: I would agree that there are challenges. I would certainly agree that there are areas where we could look for improvement, and I would also say that we do always strive to improve the way that we conduct our business whether it’s communicating directly to applicants, providing tools or videos in addition to the government’s investments. I would say that the Parole Board in implementing the program is always striving to improve.
Senator Jaffer: Thank you. I appreciate it.
Senator Batters: Thanks very much for being here. When we had Mr. Dave Blackburn here, who is a former member of Parliament, he told our committee that the automatic expiry in this bill:
. . . thwarts two essential notions in the process of successful and sustainable social reintegration: empowerment and accountability of individuals.
Do you also see value in the application process?
Mr. Broom: Thank you for the question. In the current system that we are implementing, we require the application in order to gather the information that we need, in order to be able to order a record suspension, grant a pardon or issue. It’s essential for our business. In terms of what that means for an applicant, I don’t have information on any research that has been conducted that looks into that. I would say that in administering the program, we do require, at this point in time, information from the applicants in order to be able to establish eligibility. Sentence completion, in particular.
Senator Batters: Given that you have continued to have this application process, clearly, as a policy basis, that must be something that the Parole Board considers valuable or otherwise you wouldn’t be doing it, right?
Mr. Broom: Thank you. For the Parole Board, it is an absolute necessity that we have those applications in order to gather the information needed. From a policy perspective, I wouldn’t say either way. I wouldn’t say that we have a policy position that indicates that an application absolutely should be submitted. I would say that it is necessary for administering the program.
Senator Batters: Can you comment on the flagging system that’s proposed in Bill S-212 when a previously convicted sexual offender applies to work or volunteer with children or vulnerable adults? In your view, is that particular system that’s set up in this bill an appropriate and sufficient approach to deal with those with a sexual assault conviction?
Mr. Broom: Thank you for the question. In terms of the flagging, I think that falls outside of my purview with the Parole Board of Canada. I think that would fall under the jurisdiction of Public Safety and the minister in terms of making decisions regarding record suspensions.
Senator Batters: You don’t have any comment to make about that particular type of system or if that poses any risks, as you see it? You think that is a question for Public Safety?
Mr. Broom: For the flagging of records, yes, the RCMP and Public Safety.
Senator Batters: All right. Thank you.
Senator Clement: Thank you for being here and for listening to the first panel as well. I appreciate that.
I want to follow up on questions asked by Senator Tannas and Senator Jaffer. I have been a lawyer for 31 years, and I have represented many people in this application process. I will grant you that there have been improvements over those 31 years, but people still need a lawyer. I know you have improved your website. I know that you have put out a 1-800 line, but that is only so good as how many minutes my clients have on their cellphones. So 1-800 lines don’t necessarily answer the kind of assistance that my clients need.
The majority of people in prison do not have a high school diploma and have high illiteracy rates. Websites, 28-page guides and two applications are reasons to give up. I know that you have provided stats. You have provided a report to Parliament on records of suspensions — 1,786 persons, 16% of the applicants for record suspensions had their applications rejected as ineligible because they were deemed incomplete, either because the form may not have been completed properly or information might be missing, all things that could be related to a lack of capacity. That doesn’t count the people who give up. People that I have had in my practice just say, Bernadette, this whole thing is taking too long and we can’t deal.
I guess the question around this is, what’s your capacity? Because you have a 2022-23 departmental plan where you state:
. . . the PBC continues to operate four legislative schemes, including cannabis record suspensions, which significantly increases program complexity as each legislative scheme varies in eligibility and decision-making criteria. Administering multiple schemes puts the integrity of the program at risk.
Here we have Bill S-212, which could potentially help alleviate that if we have this kind of system put in place. Can you comment on that? You have a lot on your hands. This is a plan to make my clients feel respected by their government and by the justice system.
Mr. Broom: Thank you for the question and for reviewing our materials. I would say that, yes, it is complicated administering four schemes concurrently. That complexity is something that we struggle with, and it is something that applicants need to navigate as well. We provide the best tools and advice. Those organizations that have been funded, ideally, would help people.
In terms of Bill S-212, I would say that if you are asking me in implementing it, I would raise the same concerns that I already have in terms of having no national repository or interoperability in place. If you are asking me would it be easier to administer a scheme that was less complex, I could not disagree with that.
Senator Clement: On youth criminal justice, where that was all revised, can you comment on how the Parole Board adapted to that? That was obviously a huge improvement. It is a successful process. How did the Parole Board adapt to that with the resources that you had at the time?
Mr. Broom: Thank you for the question. I was not at the Parole Board at that time, so I really can’t, in an informed way, speak about the impact.
Those are specifically youth records, so I do not have the history of how that scheme was developed, the conversations with the provincial jurisdictions. We’re not the right people to answer a question about the Youth Criminal Justice Act and the provisions under that act that handle youth criminal records, unfortunately.
[Translation]
Senator Dupuis: Thank you to both of our witnesses for being with us today. Do you have any data on the fact that the government is funding community organizations to help people apply for a pardon? Have you seen an impact on the number of applications? Do you have any data that relates to this issue?
[English]
Mr. Broom: Maybe I will start, and then if Ms. Noseworthy has anything to add, she can.
In my opening remarks, I mentioned that we have a certain volume of applications, and we are actually projecting, over the next year, to see an increase in the number of applications. There are a couple of factors that are part of that projected increase, one of which is the reduction of the fee. I think that there is no question that that is a part of it. Another is through court cases that have led to changes to the way in which we administer this scheme so that individual applicants can apply based on the scheme that was in place at the time of their conviction. That is another factor that would lead to the greater application volumes.
In terms of the impact of the community organizations, I don’t have any information myself, but maybe Ms. Noseworthy does, or on the quality of the application.
Ms. Noseworthy: Unfortunately, it is a bit too early to tell. The funding agreements that Public Safety put in place only came into effect in October. We started our outreach in November and December with those groups. We are actually continuing next week — or in the next two weeks with another session on going through the guide and showing them how to answer questions and things like that.
[Translation]
Senator Dupuis: My second question is along the same lines as Senator Clement’s. Like me, you must have read in the newspapers recently that a huge number of Canadians are not claiming what they are owed from the Department of Revenue for a variety of reasons. They either don’t know how to claim it, or they don’t even know they are entitled to it.
You seem to be focusing on access to a portal. I certainly hope it will be easier to access than the ones accountants suggest we use to fill out our tax returns. In any case, it is fair to say that, in Canada, in general, the level of technological literacy is rather low.
I’m wondering whether this might be an additional barrier to accessing your services. Perhaps this is an unwarranted concern; please reassure me.
[English]
Mr. Broom: Thank you. That is a great point to raise.
There is always a challenge for certain folks in terms of technological literacy and comfort with automated and online systems. We all experienced that.
I will say that in the development of this system that’s under way, we’ll be focusing on ensuring that it is as accessible as possible in developing a portal, because we do want to make sure that it is not too arduous or complicated and that there’s going to be support available as well to navigate it.
[Translation]
Senator Dupuis: On your website, you explain that you make parole decisions for offenders serving less than two years in all provinces and territories except Quebec, Ontario and Alberta.
Our previous witness stated that there was a problem with resources and data being distributed at local and provincial levels and that there was no central registry of convictions. I assume that the way you work provides you with access to conviction data for provinces and territories, excluding Quebec, Alberta and Ontario. Is this the case?
[English]
Ms. Noseworthy: The data that we have is provided to us by applicants. It is found in the criminal record as far as what convictions they have, the additional convictions as noted either by court or by local police. We can check certain databases. I believe there is only one court that we are able to access. We cannot access any other provincial courts or local police.
The Chair: I have a question for you.
Given the line of work you are in — which is really honourable and important, and it is important in the rebuilding of lives of Canadians — I would have thought that you would have had a particular interest in the clientele that you don’t presently have. You described the number of applications, but there has to be a vast majority of people who have been convicted of criminal offences that are not in your system, who do not apply. A vast majority, I would say, based upon the numbers that you have described. I would have thought that you would, therefore, be keen to know a bit more about the profile of the non-applicants. Can you say a little bit about that? I do not want to be critical, Ms. Noseworthy, but when you were asked this question, you tended to respond, “We have a system to support what the Parole Board needs.” Fair enough. But I would have thought there is also a dimension of this question that is what Canadians need who fit the profile of deserving to have their records expunged, or whatever, but we are not getting to who those people are.
Ms. Noseworthy: Thank you for that question. It is an interesting one. It is something that we have started to look at. We are putting together a plan to research what we can collect under the Criminal Records Act and also the Privacy Act. We want to ensure that we can collect that type of data, given the confines of the program under the Criminal Records Act, but that work has started, to see if we can expand the collection of data.
[Translation]
Senator Boisvenu: Ms. Noseworthy, how many employees are there at your branch?
[English]
Ms. Noseworthy: Currently, we have approximately 65 employees, most of which are full time. We do have some casuals as well.
[Translation]
Senator Boisvenu: When you say you handle 15,000 cases, is that the maximum caseload for your branch?
[English]
Ms. Noseworthy: At this point, we are planning to staff additional individuals —
[Translation]
Senator Boisvenu: If, then, you eventually had to handle hundreds of thousands of cases, you would be unable to manage.
[English]
Ms. Noseworthy: As my colleague mentioned —
The Chair: I think we had an earlier answer for that already.
Senator Klyne: Do you believe that automatic record expiry would enhance offender reintegration and benefit society at large by facilitating, as appropriate, the timely reintegration of individuals as law-abiding citizens? Can you allude to any studies or precedents from other countries on both the effectiveness and disadvantages of automatic expiry in the context of offender reintegration?
Mr. Broom: I would say that absolutely a record suspension is a meaningful tool to facilitate reintegration and successful rehabilitation.
Senator Klyne: I am talking about the automatic record at this point.
Mr. Broom: Switching to automatic record expiry, in terms of those jurisdictions that have automatic record expiry regimes in place, and there is some research available, I would hesitate to try to apply that research to our system here, only in so far as, in those jurisdictions, they would have a unitary system; so they would have that central repository, and they wouldn’t have the same challenge of records being held in different jurisdictions.
I don’t think we could very easily make a direct comparison. I wouldn’t be surprised if there is evidence out there that some of the spent record regimes have benefits, but I’m not sure that we could generalize that to the Canadian system.
Senator Klyne: If we were to reinvent things, would we do this automatic record expiry?
Mr. Broom: The government’s policy direction is the government’s policy direction. What we heard earlier today from our colleagues from Public Safety Canada is that the government is exploring the Automated Sequestering of Criminal Records system.
The Chair: Senator Klyne, I thought you were suggesting getting rid of federalism for a moment.
Senator Dalphond: You referred, in your presentations, to an increase of 20% of the number of applications you have received for 2021-22, 11,000 more or less, and the following year another 20% increase to over 15,000, which is the current year ending March 31. How do you explain this increase of 40% in two years?
Is that because you have simplified your process? You have more people to assist or more community networks? Or is it because the system is being discovered?
Ms. Noseworthy: We had a noticeable decline in applications leading up to the last couple of years as a result of the pandemic and a noticeable decline in applications before the pandemic because, we think, of the higher fee.
In looking at the last couple of years, and the timing of the fee announcement, clearly the reduction in the fee has triggered an increase. We would speculate that the return to business as normal for courts and police have also been able to fulfill requests of applicants in getting the information they need, but the fee is the predominant driver.
As my colleague mentioned, the Federal Court decision that resulted in us implementing multiple legislative schemes and the wait periods shortening have all contributed to that increase.
Senator Dalphond: Thank you.
The Chair: That concludes the time we have for this session.
Let me begin by thanking Mr. Broom and Ms. Noseworthy for coming and presenting and responding to our questions as frankly as you have been able to.
I would be remiss if I did not thank our clerk and professional team and interpreters and those who support the committee’s work. It is always exemplary, and from time to time, I will try to remember to extend my thanks on all of your behalves.
(The committee adjourned.)